Kelly-Goodfellow Shoe Co. v. Vail Bros.

ELLISON, J. Plaintiffs were creditors of defendants and as such brought suit against defendants and had two stocks of goods attached in aid. Afterwards, interpleader [98] filed his interplea claiming the goods were Ms and not the property of the defendents. On a trial of tMs interplea at the close of the evidence for interpleader a demurrer to the evidence offered in his behalf was interposed by plaintiff and the court aunouncing that he would sustain it, interpleader took a nonsuit with leave to set it 'aside; failing in wMeh he has appealed. The evidence for interpleader showed that he purchased the. goods of defendants for cash near three weeks before the attachment, and went into possession and was in open and notorious possession at the time of the levy. That at the sale he paid a fair value in cash, and as evidence thereof he took a bill of sale. This was sufficient to establish a prima facie case for the interpleader and it devolved upon plaintiff to defeat such case by proof of fraud on the part of interpleader. Singer v. Goldenburg, 17 Mo. App. 549. But evidence in addition to this was given in interpleader’s behalf and it must be that the demurrer was sustained on account of what appeared in that additional evidence. Eor while it is true that proof of a sale and transfer of possession .establishes a prima facie case which the opposing party must rebut, as has just been stated, yet in making out such case the interpleader’s evidence may itself destroy his case by disclosing fraud on the face thereof. So the question is, did it disclose fraud in such undoubted way as to leave but one opinion or inference about it in the minds of reasonable men ? Such must be its character to justify a peremptory instruction. We think that it did not meet this requirement. It is clear there was a sale and transfer of possession for an adequate price. But plaintiff contends that defendants’ object and purpose in selling was to cheat and defraud their creditors and that interpleader knew of and participated in this design. While there may be sufficient in the evidence upon which to raise a reasonable inference that defendants’ object in making the sale was fraudulent, and that interpleader [99] knew it, there is no justification in saying that it was so clearly and irrefutably established as to authorize a peremptory direction that it was fraudulent, or, especially, that interpleader knew it. -Interpleader- knew defendants were insolvent, but there is no disability on an insolvent which prevents him from selling his property to whoever will buy. If there was, much of the traffic of the country would cease. He also knew that defendants were indebted to various parties and were “hard pressed.” Defendants themselves so informed him they were in debt and that they wanted to sell so as t-o pay the debts. None of these things could affect his right to purchase. Singer v. Goldenburg, 17 Mo. App. 549; Sammons v. O’Neill, 60 Mo. App. 540; Gens v. Hargadine Co., 56 Mo. App. 245, 250. In the foregoing cases it will be found that we have here, starting at the case of Singer v. Goldenburg, constantly held that knowledge of the vendee of the vendor’s insolvency did not avoid a sale. We applied the rule to matters between partners and third parties in the case of McDonald v. Cash & Hainds, 57 Mo. App. 536, and the supreme court so did in Goddard Grocery Co. v. McCune, 122 Mo. 426. It is true there is a difference, and we have constantly recognized it, between a creditor purchaser and a volunteer purchaser as interpleader is. The former may know of the vendor’s intent to cheat other creditors, yet so long as he only seeks to protect himself he may buy; while if a volunteer purchaser knows of such intent his purchase is invalid though he pays value. But he must be shown to have known such intent. Mere knowledge of facts or suspicious circumstances which would put a prudent man on inquiry is not enough; though such information may be given in evidence to be considered by the jury in deciding whether there was actual knowledge in fact. Sammons v. O’Neill, 60 Mo. App. 530, 536; Dry Goods Co. v. Schooley, 66 Mo. 406; State to use v. Mason, 112 Mo. 374. [100] The additional testimony of interpleader, as set out in plaintiff’s abstract, has some tendency to show that he was endeavoring to protect himself against an attack of the sale by creditors of defendants, thus tending to show he thought its validity might be questioned. But it falls far short of establishing a fraudulent knowledge to that degree which would justify taking the question from the j’ury. , It is claimed by plaintiff that interpleader is not entitled to an appeal since, as he claims, the nonsuit was voluntary. If this was shown by the record we would dismiss the appeal. Bank v. Gray, 146 Mo. 568. But the record shows here that the nonsuit was taken in consequence of an adverse ruling of the court which destroyed interpleader’s case. The record shows that counsel for interpleader announced that the evidence was all in. “Counsel for plaintiff presents demurrer to the court, and the'court announced to counsel for interpleader that he would sustain the same. To which ruling of the court interpleader obj’ected and excepted at the time and still excepts.” Whereupon, “the interpleader takes a nonsuit with leave.” This shows an involuntary nonsuit from, which an appeal will lie. We interpret this quotation from the record to mean that the court did actually pass on the demurrer. The court announced the ruling in the words “that he would sustain the same.” That means not that he would in the future sustain it, but that he did then sustain it. Such was the evident understanding of counsel for he excepted to the ruling and such was the understanding of the court for it allowed such exception. We think, therefore, this case is to be distinguished from McClure v. Campbell, 148 Mo. 96. Objection is stated to this appeal that no final judgment was rendered. The abstract for interpleader does not show an entry of final judgment. The cause is not here on what is known as the short method, and no point is made as to the [101] form of the judgment—merely that it does not appear in the abstract. The plaintiff, however, sets it out in the additional abstract, and we think the point not well made. So of the point as to the abstract not containing all the evidence, necessary in cases of demurrer to evidence. Plaintiff prints additional testimony which we find to be correct and it should have been printed by interpleader. But being supplied by plaintiff it suffices. The result is to reverse the judgment and remand the cause. Smith, P. J., concurs ; Gill, absent.